Recent PRA Litigation Missteps: Abandoned Claims, False Starts

By Milt Rowland and Lee Marchisio

Abandoned Claims.  In West v. Gregoire, Division II of the Court of Appeals held that a PRA requestor who moves for a show cause order under RCW 42.56.550(1) abandons any claims he or she does not either (1) address in briefing, (2) mention in oral argument, or (3) otherwise specifically preserve for judicial review.  Arthur West submitted a public records request to Governor Gregoire’s office.  After providing West an initial five‑day letter, the Governor’s office did not further communicate for several months.  And when it did, it asserted executive privilege (which was later upheld in Freedom Foundation v. Gregoire).  West sued, claiming that executive privilege should not be recognized in Washington. 

Some months later, West brought a show cause motion, but failed to mention in the motion or at oral argument his other PRA claims (notably, his claim that the Governor’s initial delay in production was unreasonable).  Citing the detailed show cause procedures under RCW 42.56.550(1) and the public policies in favor of judicial economy and against piecemeal litigation, the court held that a .550(1) show cause hearing can function as a PRA claimant’s trial.  Any PRA issue not mentioned or otherwise expressly preserved in a .550(1) show cause motion is abandoned, just like any civil claimant’s allegation not mentioned in the pleadings, not raised in response to a summary judgment motion, or unsupported at trial, is deemed abandoned. 

A PRA claimant does not have to proceed by a .550(1) show cause motion, however, and can instead proceed to trial under the Civil Rules.  But if the party does file a show cause motion, it must either assert every PRA issue on that motion or otherwise preserve the issue expressly.  If not, the issue is abandoned.

False Starts.  In Hobbs v. Washington State Auditor’s Office, also before Division II, the Court of Appeals held that a records requestor may initiate a lawsuit under the PRA only after it reasonably appears that the agency will not provide records responsive to the request.  Here, the requestor sought “a large amount of technical information” related to an Auditor’s whistleblower investigation.  The Auditor’s five‑day letter indicated that the office would provide records in installments.  Two days after the Auditor provided the first installment, the requestor sued for alleged PRA violations.  In the meantime, the Auditor’s office continued to search for and produce responsive records in rolling installments, including by correcting errors in its initial productions.  Eventually, the Auditor’s office produced all responsive documents and cured all alleged violations. 

Because the suit was filed during an open request that was eventually fulfilled in compliance with the PRA, the Court held that the Auditor’s office did not improperly withhold records.  The Court also held that an agency does not violate the PRA if it makes every reasonable effort to comply with a PRA request and also fully cures alleged PRA violations while the request remains open.  Accordingly, the Auditor’s office did not violate the PRA by improperly disclosing certain documents in its initial installments because it later corrected those errors before closing out the request. 

In its final notable holding, the Court also made clear that the PRA does not require an agency to provide a reasonable estimate of the time it will take to fully respond to a request.  Instead, if an agency notifies the requestor that it will provide records on an installment basis, it need only provide in its five‑day response letter the agency’s reasonable estimate of the time it will take to produce the first installment.  

Case Law Update: "fullest assistance," redactions for effective law enforcement, disclosure of non-agency phone logs

The Washington Court of Appeals issued three notable Public Records Act decisions in the past few days.  In Andrews v. Washington State Patrol, Division III held that an agency that fails to comply with self‑imposed disclosure deadlines does not violate the PRA if the agency acts diligently to produce the requested records.  The specific records request was complex, seeking audio recordings of third‑party telephone conversations protected by attorney‑client privilege.  In order to preserve confidentiality, the State Patrol developed a method to identify responsive records from over six months of recordings without actually listening to the recorded conversations.  In the process, the State Patrol missed self‑imposed disclosure deadline estimates without notifying the requestor that it needed additional time to compile the records.  Facing 1,000 additional public records requests at the time, the Patrol ultimately disclosed the records in less than 90 days.  The Court held that the PRA’s requirement that agencies provide a “reasonable” estimated response date is not a requirement for an “exact” estimate and that the Patrol’s failure to meet its self‑imposed deadlines or to notify the requestor that additional time was needed did not violate the PRA’s “fullest assistance” provision. 

In Haines‑Marchel v. Department of Corrections, the requestor sought internal investigation documents from the Clallam Bay Corrections Center.  Relying on those documents, prison officials placed an inmate on “dry cell watch” in order to monitor the inmate for suspected contraband.  The documents detailed allegations by three separate named inmate informants.  Citing an exemption for sensitive information contained in law enforcement records, RCW 42.56.240(1), the Department released the documents but redacted the informants’ names and identifying numbers, the details of their allegations, and all information about their reliability as informants.  Division II of the Court of Appeals agreed with these redactions, holding that releasing this investigative record information would undermine effective law enforcement at correction centers.  Informants identified in the documents could be subject to retaliation and future informants would be “chilled” against providing information to Department officials.  Similarly, the Department properly redacted pre‑printed material in the documents because those materials detailed the Department’s methods of investigation.  Releasing this intelligence information would aid inmates in crafting and disguising false or deceptive accusations.  However, the Court also held that other information was improperly redacted.  The accused inmate’s name and assigned number, the specific rule he allegedly violated, and the investigating officer’s signature in the documents were not similarly exempt. 

Last week in Nissen v. Pierce County, Division II held that text messages sent and received from a government employee’s private cell phone are public records if they relate to government business.  Similarly, portions of call logs that track a government employee’s private, non‑agency cell phone could be public records for those calls that relate to government business.  The more difficult question was whether the agency “prepared, owned, used or retained” the phone logs.  Unlike the text messages, which were prepared and used by the employee as a government official, the cell phone logs were created by a private cellular provider and delivered to the employee in his private capacity.  Accordingly, the call logs might not be “used” or “retained” by the agency even though the phone itself was used for government purposes.  The Court remanded for the trial court to determine this question after developing the record.  Arguably, the Court avoided a fundamental issue that could have been resolved as a matter of law: “we do not reach the question of whether [the employee’s] personal cellular phone call logs became ‘public records’ when he delivered them to the prosecutor’s office for the agency to redact.”  


Recommended Reading: Ethics and the Public Disclosure Act

Foster Pepper's Regulatory & Government Affairs practice recommends reading, "Does Media Coverage of School Shootings Lead to More School Shootings?" to stay up-to-date on conversation related to the Public Disclosure Act. The Stranger originally published the article on August 11, 2014.

Court Of Appeals Holds Records Subject To Protective Order As Unduly Burdensome Not Exempt Under The Public Records Act

In Washington State Department of Transportation v. Mendoza de Sugiyama (Division II), a former employee brought an employment action against the Department of Transportation (“DOT”) and requested certain records in pretrial discovery.  When the trial court granted DOT’s motion for a CR 26(c) protective order on the grounds that the request was unduly burdensome, the former employee submitted a public records request to DOT for the same records.  DOT brought a separate action for declaratory and injunctive relief, arguing that the records were exempt under RCW 42.56.290 (the Public Records Act’s “controversy exemption”) because the records were “not available to a party under the rules of pretrial discovery.”

A divided panel of the court of appeals determined that the records were not exempt, holding that records subject to a CR 26(c) protective order on the grounds that they are unduly burdensome for an agency to produce are nonetheless “available” under the civil rules of pretrial discovery and therefore not exempt under the controversy exemption.  The majority observed that no privilege was involved and that the protective order was aimed at the scope of the discovery request, not the content of the material sought.  The majority found this distinction dispositive, and noted that the PRA specifically prohibits agencies from denying requests solely because they are overbroad.  RCW 42.56.080.  The majority concluded that a “more reasonable interpretation of the statutory language is that the legislature intended to exempt under the PRA only those records that would not be available to any party under universally applicable rules of discovery, rather than those records rendered conditionally unavailable to a specific litigant under the unique facts….” (emphasis in original).  It also found no conflict between the PRA and the superior court discovery process.

The dissent argued that a requestor “should not be allowed to use the PRA to thwart the court’s authority to manage litigation before it, especially when that authority is carried out in close conformance with the Civil Rules.”  Observing that the plain language of RCW 42.56.290 exempts material that is unavailable under the rules of pretrial discovery, one of which is CR 26(c) authorizing protective orders, the dissent would have held the records exempt from production.

Recommended Reading: Open Public Meetings Law

Foster Pepper’s Regulatory & Government Affairs practice recommends staying updated on state open public meetings law and reading the most recent development as reported by Justin Runquist of The Columbian. Washougal mayor: Council may have violated public meetings law. 

Names of Police Officers Involved in Shootings Subject to Disclosure in California

The Los Angeles Times requested that the City of Long Beach release names of police officers involved in shootings that occurred while the officers were on duty. The officers’ union sued the City to prevent disclosure, and the LA Times intervened in support of its request. Following earlier decisions in favor of the Times and disclosure, the California Supreme Court affirmed those earlier decisions. Long Beach Police Officers Ass’n v. City of Long Beach, 203 Cal.App.4th 292 (May 29, 2014). Finding that, while disclosure of officers’ names may not be warranted in every case, the Court’s balancing test in this case determined that the public’s interest in disclosure prevailed over vaguely worded assertions regarding officer safety or the safety of the officer’s family. The Court recognized the “general safety concerns of officers who fear retaliation from angry members of the community after an officer-involved shooting.” But the Court also concluded that the California Legislature had determined it important “for the public to know the identities of the officers serving the community.”

Former Public School Teacher Has No Privacy Right to District Investigation of Sexual Misconduct

In early 2012, The Spokesman-Review requested records from the Riverside School District relating to Allen Martin. Mr. Martin, when a teacher at the District, engaged in sexual conduct with a consenting adult in Martin’s classroom. As a result, the District did not renew his teacher’s contract. Mr. Martin filed a lawsuit to prevent the District’s disclosure in response to the Public Records Act request. On January 30, 2014, the Court of Appeals issued its Opinion upholding the disclosure of the District’s records. On March 18, 2014, the Court ordered that its decision be published

In Martin v. Riverside School District, the Court applied the recognized standard from Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, 164 Wn.2d 199 (2008): “[W]hen a complaint regarding misconduct during the course of public employment is substantiated or results in some sort of discipline, an employee does not have a right to privacy in the complaint.” Martin contended that his relationship with a consenting adult was a matter concerning his private life and did not relate to public duties with the District. The court disagreed. Martin’s conduct was an inappropriate use of school facilities. The public had a legitimate interest in the disclosure of Martin’s identity and the District’s records relating to Martin’s conduct. The right to privacy applies when a complaint involves “unsubstantiated or false allegations” because such allegations concern matters involving private lives of public employees. Here, the allegations were substantiated and Martin had no right to privacy in that information.

When is a Committee Not a Committee Under the OPMA?

The Washington Open Public Meetings Act (OPMA), chapter 42.30 RCW, applies to a “governing body” as well as to a committee that “acts on behalf of” a governing body. The key definitions from the OPMA, at RCW 42.30.020, include as follows:

(1) “Public agency” means:

(a) Any state board, commission, committee, department, educational institution, or other state agency which is created by or pursuant to statute, other than courts and the legislature;

(b) Any county, city, school district, special purpose district, or other municipal corporation or political subdivision of the state of Washington;

(c) Any sub agency of a public agency which is created by or pursuant to statute, ordinance, or other legislative act, including but not limited to planning commissions, library or park boards, commissions, and agencies. . . .

(2) “Governing body” means the multimember board, commission, committee, council, or other policy or rule making body of a public agency, or any committee thereof when the committee acts on behalf of the governing body, conducts hearings, or takes testimony or public comment.

Under its plain terms, the OPMA applies to a meeting of a majority of a council or commission. What is less clear is whether the OPMA applies when less than a majority of a council or commission meets (e.g., the meetings of a 3 member committee of a 7 member council). The Washington Court of Appeals recently addressed this very issue in a case involving the 6 member San Juan County Council. Citizens Alliance for Property Rights v. San Juan County (April 28, 2014, unpublished). The Court considered a challenge, based on the OPMA, to San Juan County’s adoption of updates to its Shoreline Master Program and Critical Area ordinances. Central to the Court’s decision was the construction of the OPMA’s provisions regarding committees.


In 2010, the County began the update process to its Shoreline Master Program and Critical Area ordinances. Until early 2012, a County internal team, including three County Councilmembers and certain executive staff, met regularly to discuss the update. The team meetings were not open to the public. After the Prosecuting Attorney cautioned the team regarding the potential application of the OPMA, the Councilmembers discontinued the practice. Many months later, and following extensive public meetings, including over 30 meetings after the team meetings had ceased, the County adopted its Critical Area ordinances.

A citizens group challenged the ordinances, arguing that the County’s earlier team meetings with three of the Councilmembers constituted illegal meetings under the OPMA. The Court rejected that argument and held that the team was not a “committee” that constituted a “governing body” subject to the OPMA.


The OPMA applies to any “committee” of a governing body, regardless of the identity of the members (elected officials, staff, or members of the public). AGO 1986 No. 16. The more important question is whether the committee performs one or more of the functions identified by the OPMA to qualify that committee as a “governing body” subject to the OPMA.

In 1983, the Legislature amended the OPMA to clarify the application of the Act to certain committees of a governing body. Laws of 1983, chapter 155, § 1. Now, the OPMA applies to any committee of a governing body “when the committee (1) acts on behalf of the governing body, (2) conducts hearings, or (3) takes testimony or public comment.” RCW 42.30.020(2) (numbering added). Accordingly, any committee or subcommittee, even if composed solely of a minority of a commission or council or composed of nonmembers of a governing body (such as a task force or ad hoc working group), is subject to the OPMA if it conducts hearings or receives testimony or public comment. See Clark v. City of Lakewood, 253 F.3d 996 (9th Cir., 2001) (city planning advisory board’s task force to study adult entertainment regulation took testimony and violated the OPMA when a majority of its meetings were closed to public). The San Juan County team did not receive testimony or conduct hearings. So, that provision of the OPMA was not controlling.


A committee also qualifies as a “governing body” if it “acts on behalf of the governing body.” RCW 42.30.020(2). The citizens group argued that the County’s study team acted “on behalf of” of the County Council and was therefore subject to the OPMA’s open meetings requirement. The interpretation of the phrase “on behalf of” has been debated for many years. The Washington Attorney General evaluated alternative interpretations of the phrase in AGO 1986 No. 16. There, the Attorney General applied a narrower definition and concluded that “a committee acts on behalf of the governing body when it exercises actual or de facto decision making authority for the governing body.” Applying that construction, the Court held that the citizens group failed to produce evidence that the team (which included three County Councilmembers) exercised actual or de facto decision making authority for the full Council. That OPMA challenge was rejected.


In a matter of apparent first impression for Washington courts, the citizens group also argued that the three San Juan County Councilmembers constituted a “negative quorum” that could effectively block any legislation regarding the disputed issue. The citizens group cited State ex rel. Newspapers, Inc. v. Showers, 135 Wis.2d 77, 398 N.W.2d 154 (1987). There, the Wisconsin Supreme Court held that Wisconsin’s Open Meeting Law applied because four of eleven members of a governing body could block a budget ordinance. In the case of San Juan County, the three County Councilmembers could also prevent the passage of legislation. The Washington Court of Appeals declined to follow Showers, however, and applied earlier Washington court decisions that required the presence of a majority of members before there was a “governing body” subject to the OPMA. See In re Recall of Beasley, 128 Wn.2d 419, 427, 27 P.3d 878 (1996) (in recall action, no meeting of majority of school board); In re Recall of Robert, 115 Wn.2d 551, 554, 799 P.2d 734 (1990) (in recall action, no meeting of majority of town councilmembers).


The San Juan County decision is unpublished. While it provides guidance, it is not yet controlling authority. As a result, councils and commissions should be cautious about the application of the OPMA to committees, task forces and other groups that include council members or commissioners. For additional guidance, see the extensive library of OPMA materials on the MRSC website.

Court Of Appeals Determines That Public Records Act Exemption For Proprietary Information Obtained By Public Agencies Can Be Asserted By Private Parties

In Robbins, Geller, Rudman & Dowd, LLP v. State, Division II of the Court of Appeals decided that private parties may assert the Public Records Act exemption in RCW 42.56.270(1) for certain financial, commercial, and proprietary information obtained by public agencies. Private parties may also assert that disclosure would produce a public loss, regardless of the agency’s position on the issue. However, the court declined to address the open question in Washington of the proper standard for an injunction based on an “other statute” exemption under RCW 42.56.070(1).

The law firm of Robbins, Geller, Rudman & Dowd sought to enjoin release of information that the firm submitted to the Washington Attorney General’s Office (“AGO”) as part of its response to a request for qualifications. Although the Court of Appeals held that the law firm could assert the proprietary information exemption under RCW 42.56.270(1), it reversed the trial court’s decision to issue a permanent injunction, finding that the law firm failed to prove that the exemption, or any other exemption, prevented disclosure of the information at issue in response to a public records request.

The court first addressed exemption under the Uniform Trade Secrets Act (UTSA), Ch. 19.108 RCW. In rejecting application of that exemption, the court held that the law firm failed to show that its fee proposal and insurance information differed significantly from information already in the public arena. The court also held that the firm had not demonstrated any reasonable attempts to keep previously published client information secret and that its reference lists, by their very nature, were created for dissemination outside the firm. Accordingly, the UTSA did not prevent disclosure.

Notably, the court declined to address the undecided issue of whether the PRA injunction standard, RCW 42.56.540, applies when a court relies on an “other statute” exemption, such as the UTSA, rather than a PRA exemption to bar disclosure. The AGO and the law firm argued that such “other statutes” provide independent bases for enjoining disclosure without consideration of the PRA’s injunction requirements. The requestor of the records and amici curiae argued that the PRA injunction standard must be satisfied, even for exemptions pursuant to “other statutes.” Although the parties urged the court to provide guidance, the court declined to address the issue because the UTSA did not exempt the materials at issue.

The court also rejected the law firm’s asserted PRA exemptions. The court largely focused on the proprietary information exemption under RCW 42.56.270, which exempts from disclosure “[v]aluable formulae, designs, drawings, computer source code or object code, and research data obtained by any agency within five years of the request for disclosure when disclosure would produce private gain and public loss.” RCW 42.56.270(1). As a matter of first impression, the Court of Appeals rejected the requestor’s argument that a private party cannot invoke the exemption or assert a public loss. First, nothing in the statute restricted its application to public agencies, and unrestricted application was not inconsistent with the purpose of exemption. Second, because the PRA expressly allows interested parties to seek an injunction to prevent disclosure of exempt public records, private parties can assert public loss, even if the public agency chooses not to do so.

Nevertheless, the Court of Appeals held that the law firm failed to establish public loss under the exemption. Because the firm also could not establish any other exemption under the PRA for the information sought, the Court of Appeals reversed the trial court’s permanent injunction as to those records. However, the court declined to award penalties, costs, or attorney’s fees to the requestor because the AGO did not wrongfully withhold the records; it withheld the records pursuant to a court order. Thus, the requestor did not “prevail” against the agency under RCW 42.56.550(4).

Montana Supreme Court Upholds Public Employees' Right to Privacy in Employee Discipline Public Records Case

The Montana Supreme Court recently ruled that public employees have a reasonable expectation of privacy in their identity with respect to internal disciplinary matters, provided that the employee is not in a position of public trust and the misconduct resulting in discipline is not a violation of a duty requiring a high level of public trust. In Billings Gazette v. City of Billings, 313 P.3d 129 (Mont. 2013), the city rejected the local newspaper’s request for the identification of certain city employees who had been disciplined for accessing pornographic materials on city computers during work hours. The city provided the Gazette with materials that were responsive to its request, such as internal investigation documents and information regarding the specific discipline imposed, but it redacted the employees’ identifying information.

The Gazette sued to compel disclosure and argued that “unauthorized computer usage by disciplined [c]ity employees was subject to release under the ‘right to know’ provision of [the Montana Constitution] . . . and that any privacy interest the disciplined employees may have in the information being requested did not clearly exceed the public’s right to know.” After in camera inspection, the district court agreed and ordered the city to disclose the investigative materials, with redactions only for uninvolved third parties.

Upon direct review, the Montana Supreme Court resolved the competing state constitutional interests of the city employees’ right to privacy and the Gazette’s right to know by considering (1) whether the employees had a subjective or actual expectation of privacy, and (2) whether society was willing to recognize that expectation as reasonable. The court explained that not all public employees possess the same level of privacy in disciplinary matters: in circumstances where the status of a public employee requires a high level of public trust (e.g., elected officials or police officers), the expectation of privacy may be significantly lower than for an administrative employee; likewise, an administrative employee may have a lower expectation of privacy in behavior related to a duty of public trust (e.g., spending public money or teaching children). Accordingly, when a public employee has a lower expectation of privacy the burden of the party seeking disclosure is correspondingly reduced.

Here, the city employees were not elected officials, upper management, or department heads, nor was there any indication their misconduct violated any duty or public trust. While the employees had access to government computers and received their wages from tax dollars, the court stated that granting access to a computer does not demonstrate a public trust. Moreover, a public employee’s violation of office policy does not in turn violate a public trust simply because tax dollars pay the employee’s salary. On the facts presented, the court held that the city employees had an actual or subjective expectation of privacy in their identities that society would recognize as reasonable. Also, because the Gazette had already received relevant information related to the misconduct, investigation, and punishment of the city employees, any benefit of disclosing their identities was negligible at best. If the public was not satisfied with the punishment, it had all the information it needed to voice an opinion.

The dissent argued that even if the city employees had some expectation of privacy, society would not recognize that expectation as reasonable because the employees sought out and enjoyed pornographic material on city computers during work hours with full knowledge of the city’s Internet use policy. Part of this policy specified that employee computer usage was not anonymous and that the city could monitor individual accounts. The dissent further maintained that it was absurd to deem the city employees’ expectation of privacy as reasonable because in many cases the employees breached a security device in order to access the pornographic material, thus exposing the city’s computer network to damage from malware and viruses.